Tuesday, June 2, 2009

While the fact that Sotomayor is, at most, an average legal mind is itself sufficient to warrant concern over her nomination to the Supreme Court, there are certainly other reasons to oppose her nomination. As a counter to some of the knee-jerk conservative accusations of “ultra-liberalism” on Sotomayor’s part, I’m going to actually walk through some of the issues that I feel should, at the very least, be causes for concern:

Her decision in Maloney v. Cuomo. This ruling stated that the recent case of Heller v. District of Columbia did not invalidate Presser v. Illinois and did not incorporate the Second Amendment. I cannot see any defensible logic that would read the Heller decision as anything other than and incorporation of the Second Amendment and it is shocking to me that someone who has been nominated for the Supreme Court could interpret the Heller decision so poorly.

While this was a per curiam decision, and therefore we do not officially know which of the Second Circuit’s justices wrote the actual opinion, Sotomayor was on the panel and per curiam decisions represent unanimous opinion, so one is forced to conclude that Sotomayor agrees fully with the published opinion.

In 2002 Sotomayor made the following comment during a speech at the UC Berkeley School of Law:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion (as a judge) than a white male who hasn’t lived that life.

Even allowing for the fact that Sotomayor was undoubtedly speaking in generalities so as to present a more appealing speech, this is a disturbing statement. One has only to swap the position of the terms “Latina woman” and “white male” within the sentence to see the inherent low-level racism in the comment.

Worse, however, is the tacit implication that life experiences are a valid source of judicial insight. This cannot be interpreted as anything other than an endorsement of the concept of Judicial Activism. This is not a good thing. The role of judges is to determine what the law actually says about an issue; judicial activism suggests that judges base their ruling on what they think the law should say, effectively giving justices legislative powers and circumventing the system of checks and balances that were built into the constitution.

Her opinion in Ricci v. DeStefano. Here we have another per curiam decision and again there are troubling issues. A competency test was devised and vetted by outside agencies; people made significant sacrifices to study for the test as they were told that success would allow them to be considered for advancement in their careers; when the testing was complete, the results were throw out because, despite equality of opportunity, the outcome was not what the testing entity desired. Sotomayor was involved in the panel’s unanimous per curiam decision which upheld the right of the testing entity to throw out the results.

What is interesting to me here is that in both instances of controversial decisions we see Sotomayor hiding behind per curiam decisions. In a per curiam decision, the decision’s author is not revealed which obscures insight into the individual legal decisions weighing on the minds of the individual judges.

That 2002 speech in Berkeley again:

Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar.

Pardon me? The facts that a judge chooses to see? Chooses? This is incredibly disturbing to me and should be to anyone who gives the issue any thought at all. Judges do not get to choose which facts they see. It is the responsibility of a Judge to see all facts and to render unbiased opinions. Liberal or conservative, Democrat or Republican, no-one should ever be content with a judge who picks and chooses which facts of a case to consider and which facts to ignore.

Clearly, there are valid reasons to be concerned about Sotomayer as a Supreme Court justice that go beyond mere partisan hackery.

Reasons 2, 3, and 4 seem solid to me. I think Reason #1 is a closer call. The Court in Heller explicitly declined to decide the incorporation question, and there are some valid bases for an appellate court to decline to incorporate the Second Amendment against the states. The Seventh Circuit’s recent decision on the issue (where three fairly conservative judges reached the same result as Sotomayor’s Second Circuit panel) lays out the reasoning fairly well. Basically, it argued that there were some old Supreme Court cases declining to incorporate the Second Amendment; those cases have never been overruled; and even if it would be appropriate to overrule them, that is a task for the Supreme Court, not the circuit courts. This is true even though the old cases didn’t even consider the doctrine of selective incorporation, which hadn’t been invented yet (and which provides the strongest basis for incorporating the Second Amendment today). Personally, I think this decision was incorrect, because appellate courts should be able to ignore Supreme Court precedent if the doctrine on which the old cases rely has become obsolete. But I don’t think the decision was completely unreasonable; it is a good thing when appellate courts recognize their place in the judicial system and not try too hard to foreshadow what they think the Supreme Court will do.